ex10-1.htm


    Exhibit
10.1

     

    CONTINGENT

    PROMISSORY
NOTE

     

    Houston,
Texas

     

    


    $500,000 Issue Date:  March
1, 2008

    


               FOR VALUE RECEIVED, the
undersigned, Omnimmune Corp., a Texas corporation (“Maker”), promises to pay to
Harris A. Lichtenstein, or his assigns, an individual residing in the State of
Texas (“Payee”; Payee and any subsequent holder(s) hereof are individually and
collectively referred to as “Holder”), or order, the sum of Five Hundred
Thousand and 00/100 Dollars ($500,000), as hereinafter provided.

    


               1.           Principal
Payments.

    


    (a)           
Payment.  This
Note shall be and is payable in cash by Maker from the proceeds due and payable
to Payee in the form of the Revenue Percentage Payment (as such phrase defined
in Exhibit A, attached hereto and made a part hereof, entitled “Definitions”) or
from a Significant Transaction (as defined below), which proceeds shall be
distributed by Maker to Holder within thirty (30) days following the date on
which Maker is thereafter in full or partial payment of this Note.

     

    (b)           Interest.  This
Note is non interest bearing.

    


    (c)           Tender.  All
payments of principal shall be made in lawful money of the United States of
America and shall be made to Holder at Holder’s address set forth in Section 5
or at such other place as Holder may designate to Maker in writing.

    


               2.           Events of
Default.  The occurrence or
existence of any one of the following events or conditions shall constitute an
“Event of Default”:

    


    (a)           Maker
shall fail to pay the principal of this Note when the same becomes due and
payable in accordance with the terms hereof and such amount remains unpaid for
ten (10) days after the due date thereof;

    


    (b)           Maker
fails to observe or perform any other covenant or agreement on the part of Maker
contained in this Note which failure continues for a period of sixty (60) days
after the date of written notice thereof from Holder;

    


    (c)           Maker
makes a general assignment for the benefit of its creditors or applies to any
tribunal for the appointment of a trustee or receiver of a substantial part of
the assets of Maker, or commences any proceedings relating to Maker under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debts,
dissolution or other liquidation law of any jurisdiction; or any such
application is filed, or any such proceedings are commenced against Maker and
Maker indicates its consent to such proceedings, or an order or decree is
entered by a court of competent jurisdiction appointing such trustee or
receiver, or adjudicating Maker bankrupt or insolvent, or approving the petition
in any such proceedings, and such order or decree remains unstayed and in effect
for ninety (90) days

    .

    


               3.           Remedies.

    


    (a)           If
an Event of Default occurs and is continuing, Holder may, by notice in writing
to Maker, declare the entire unpaid principal of the Note to be due and payable
immediately, and upon any such declaration the principal on the Note shall
become and be immediately due and payable, and Holder may thereupon proceed to
protect and enforce its rights either by suit in equity or by action at law or
by other appropriate proceedings, whether for specific performance (to the
extent permitted by law) of any covenant or agreement contained herein or in aid
of the exercise of any power granted herein, or proceed to enforce the payment
of this Note or to enforce any other legal or equitable right of
Holder.

    


    (b)           In
the event this Note is placed in the hands of an attorney for collection or for
enforcement, or in the event that Holder incurs any costs incident to the
collection of any indebtedness evidenced hereby, Maker agrees to pay all
reasonable attorneys’ fees and expenses, all court and other costs and the
reasonable costs of any other collection efforts.  Forbearance to
exercise the remedies set forth herein with respect to any failure or breach of
Maker shall not constitute a waiver by Holder of any of such
remedies.

    


               4.           Expenses.  Each of Maker and
Payee shall bear its own costs incurred in connection with the negotiation,
documentation and execution of this Note, the closing of the transactions
contemplated herein, and any amendment, waiver, consent, supplement or
modification hereto.

    


    5.      Notices. All notices, requests,
consents and other communications required or permitted under this Note shall be
in writing and shall be deemed to have been delivered three (3) days after the
date mailed, postage prepaid, by certified mail, return receipt requested, or on
the date personally delivered:

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    
      	
              If
      to Maker, to:

              Omnimmune
      Corp.

              Attn:  Chief
      Executive Officer

              4600
      Post Oak Place

              Suite
      352

              Houston,
      Texas  77027

               

              with
      a copy to:

               

              Frank
      McDaniel, Esq.

              McDaniel
      & Henry, LLP

              PO
      Box 681235

              Marietta,
      Georgia   30068-0021

            	
              If
      to Payee, to:

               

              Harris
      A. Lichtenstein

              15
      Wynden Place Lane

              Houston,
      Texas 77056

               

            


    

    


    If to any
Holder other than Payee, to such address as may have been designated by notice
given Maker by such Holder.  Maker, Payee or any other Holder may
designate a different address by notice given in accordance with the
foregoing.

    


    6.           Governing Law. This Note and the
rights and obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Texas
(without regard to principles of conflicts of laws) and applicable federal
law.

    


    7.           Severability.  If
one or more provisions of this Note are held to be unenforceable under
applicable law, such provision shall be excluded from this Note and the balance
of this Note shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.

    


    8.           Entire
Agreement.  This Note shall constitute the entire agreement
between the parties with respect to the indebtedness represented hereby and
shall supersede and replace all prior promissory notes, arrangements, agreements
and understandings with respect to the subject matter hereof.

    


    This
Note is only valid upon cancellation and surrender to Maker of (i) the original
Promissory Note dated March 1, 2007 in the original principal amount of up to
$5,000,000; (ii) the original Promissory Note dated March 1, 2007 in the
original principal amount of up to $150,000; and (iii) the original Promissory
Note dated March 1, 2007 in favor of Intrepid Technologies, Inc., a Texas
corporation, owned by Payee, in the original principal amount of up to
$1,000,000 (collectively, the “Lichtenstein Notes”).

    
 

    Except
for claims arising under this Note, Payee hereby and forever releases and
discharges Maker and each affiliate thereof from any and all causes of action,
actions, affirmative defenses, defenses, counterclaims, judgments, liens,
indebtedness, damages, losses, claims, liabilities and demands of every kind and
character, whether known or unknown, liquidated or unliquidated, suspected or
unsuspected, existing or prospective, from the beginning of time through and
including the date hereof arising from, under or in connection with the
Lichtenstein Notes.

     

    Omnimmune
Corp.

    


    


    


    By: /s/ Mark S.
Germain                        


    Mark
Germain

    Director

    
 

    ACCEPTED
AND AGREED TO:

    


    


    By: /s/ Harris A.
Lichtenstein             
                                                      

    Harris A.
Lichtenstein, Ph.D.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
A

     

    Definitions

    


    For
purposes of this Note, the following terms and phrases shall have the meaning
ascribed thereto:

    


    


    “Revenues”
shall mean the consideration, if any, paid to the Company or for the Company’s
benefit, including, without limitation, (i) any lump sum payment or series of
related lump sum payments from a third party in consideration for the third
party acquiring an interest in the future revenues of a product or technology
owned or controlled by the Company, and (ii) capital contributions or other
payments into partnerships or joint ventures with the Company by a partner,
collaborator or other third party, whether in cash or in kind (valued at fair
market value), in exchange for the licensing, sublicensing, or transfer of
technology, or to develop technology or products of, or with, the Company,
including, without limitation, license fees, milestone payments and premiums
paid on purchases, whether equity or debt, of the capital stock of the Company,
provided, that
such premiums shall include only the amount paid greater than the fair market
value of such capital stock.

    


    “Revenue
Percentage Payment” shall mean the following payment to be made by Maker to
Payee either under this Note or that certain employment agreement entered into
by and between Maker and Payee of even date herewith:  in the event
that the Company (a) initiates one or more transactions with one or more third
parties during the Term and (b) consummates such transaction or transactions,
from which the Company receives any Revenues (each a “Transaction”), a
percentage payment equal to two percent (2%) of such Revenues from each such
Transaction, which payment to Payee shall first be made in reduction of and in
satisfaction of the principal of this Note and treated for income tax purposes
not as income to Payee, but as a repayment of expenses having been advanced to
either Maker or its predecessor only if and to the extent Payee substantiates in
accordance with Internal Revenue Service requirements his having made such
advances.

     

    “Significant
Transaction” shall mean the sale of all or substantially all of Maker’s
assets.